SAY HIS NAME
Ahmaud Arbery's murder shows how hard it is to prosecute cops, or even ex-cops
Anthony L. Fisher  May 7, 2020

A cross with flowers and a letter A sits at the entrance to the Satilla Shores neighborhood where Ahmaud Arbery was shot and killed May 7, 2020 in Brunswick, Georgia. Sean Rayford/Getty Images



Ahmaud Arbery, an unarmed black man whose family says he was just out for a jog, was chased by two white men who suspected him of being a burglar. One of those men them shot Arbery to death.

Graphic leaked video of the shooting went public this week, causing many on both the left and right to express outrage and disgust. 

The father-son duo that hunted Arbery both had ties to law enforcement. The father himself was an ex-cop who recently retired as an investigator for the District Attorney's office.

A prosecutor — who eventually recused himself from the case — wrote a letter to the police saying he saw no reason to press charges against Arbery's killers, saying they had a right to conduct a citizen's arrest and to shoot in self-defense.

The unwillingness of prosecutors to bring charges against people who run in their law enforcement circles is a problem that is brought to the forefront by the killing of Ahmaud Arbery.

The fatal shooting of Ahmaud Arbery, an unarmed 25-year-old Georgia black man, is such an obvious case of vigilante murder that it has united some prominent voices of both the left and right in universal outrage.


Though much of the early outrage has focused on the issues of race, open carry, and citizen's arrest laws — all-important issues in this case — there's another pertinent issue that deserves critical examination: the often too-cozy relationship between prosecutors and police.

Prosecutors are generally disinclined to bring charges against police officers, or even ex-police officers, as in the case of Arbery's killers.

Arbery was shot on February 23. But it took a tweet on Tuesday from activist Shaun King sharing a video of the shooting — roughly two and a half months later — for the prosecutor in charge, Tom Durden of Georgia's Atlantic Judicial Circuit, to say he is recommending the case be brought before a grand jury.

Durden is the third prosecutor assigned to the case because the previous two recused themselves for conflicts of interest.

Update: Minutes after this column was published, the Georgia Bureau of Investigation announced: "Gregory & Travis McMichael have been arrested for the murder of Ahmaud Arbery."
Vigilante murder

Arbery was shot twice by 34-year-old Travis McMichael, who with his 64-year-old father Gregory, chased Arbery in a pickup truck after Gregory saw him running down the street.

Arbery's family says he was an avid jogger and out for a run, and in the video he appears to be wearing workout clothes.

The elder McMichael thought Arbery looked like a burglary suspect he claimed to have seen in a surveillance video, and he and his son brought a shotgun and a .357 magnum along for the ride. A third man followed in another car, and appears to be the person who shot the video.

The 36-second video clip clearly shows the McMichaels' truck parked in the middle of the road, blocking Arbery's running path. Travis stands outside the vehicle holding a shotgun, while Gregory stands in the pickup's bed. Arbery runs around the right-side of the truck and though it is unclear who initiated contact, scuffles with Travis over the shotgun.

Within seconds, shots were fired, and Arbery collapsed to the asphalt. He died on the scene.

When police arrived, Gregory told them that "there have been several break-ins in the neighborhood," according to the police report. According to The Brunswick News, just one burglary was reported in the area from January 1 to February 23: a gun stolen from Travis McMichael's unlocked pickup truck on January 1.

Gregory also told police that they shouted "stop, we want to talk to you" before pulling alongside Arbery. At this point, he said, "Travis exited the truck with the shotgun" and Arbery "began to violently attack Travis."

However, the video clearly shows Travis standing holding the shotgun a full ten seconds before Arbery attempts to run around the parked truck. The police report doesn't mention that Arbery was unarmed. No arrests were made at the scene.

It wouldn't be until May 7 that the McMichaels were arrested.
A prosecutor saw the video and still believed the McMichaels' story

The first prosecutor, Glynn County District Attorney Jackie Johnson, recused herself because the elder McMichael, a former police officer, had been an investigator in the DA's office. The next prosecutor, Waycross judicial circuit District Attorney George Barnhill, also recused himself from the case because his son currently works in Johnson's office.

Before his recusal, Barnhill sent a letter to Glynn County PD Captain Tom Jump, where he wrote, "I appreciate there is immediate pressure on your department as to the issue of 'Arrest,'" adding that he did "not see grounds for an arrest of any of the three parties."

Barnhill in the letter identified William Bryan (called "Roddy" in the police report) as the third man in pursuit of Arbery, and the person who shot the video.

The DA wrote that the video "appears" to show Arbery "running along the right side of the McMichael truck then abruptly turns 90 degrees to the left and attacks Travis McMichael."

That's an outrageous way to describe what actually happened.

In the video, Arbery is seen "running along the right side" of a stopped truck with two men brandishing weapons and waiting for him to approach.

Barnhill posited that "Arbery's mental health records & prior convictions help explain his apparent aggressive nature and his possible thought pattern to attack an armed man."

As often happens in the case of police-involved shootings, the victim's past became evidence to support the shooting. According to The New York Times, Arbery "was convicted of shoplifting and of violating probation in 2018" and that in 2013 "he was indicted on charges that he took a handgun to a high school basketball game."

Further, Barnhill wrote, the men were within their rights under Georgia state law to openly carry firearms. They were also in the clear because they were "'in hot pursuit' of a burglary suspect, with solid firsthand probable cause, in their neighborhood, and asking/telling him to stop." That, Barnhill wrote, put them within their rights to conduct a citizen's arrest and detain Arbery until police arrived.

Finally, Barnhill said, "Arbery initiated the fight" and grabbed Travis' shotgun. Therefore, "under Georgia Law, McMichael was allowed to use deadly force to protect himself."

It shouldn't have taken the video going public to launch a grand jury

Between 2005 and 2015, 54 police officers were prosecuted for a line of duty shooting, according to The Washington Post.

There are about 1,000 police-involved shootings in the US every year. It strains credulity that just 54 of the thousands of shootings met the criteria for a prosecutor to recommend charges to a grand jury.

Neither of the McMichaels are current police officers, but they have strong ties to law enforcement and the DA's office. It's entirely possible these ties had nothing to do with Barnhill's recommendation that they not be arrested for Arbery's shooting.

It's also entirely possible that Barnhill considered all the available facts and merely wanted to make his opinion known to the Glynn County PD, who were under public pressure to make an arrest.

But Barnhill recused himself from the case because he had a conflict of interest. His attempt to put his finger on the scales of justice before stepping aside is unethical, to say the least.

If he's too compromised to work on this case, he shouldn't be telling the police how to consider the evidence. And he should be made to answer for his misstatements of facts that are clearly contradicted by the video (if the video that went public is the same he saw, which seems likely).

The unwillingness of prosecutors to bring charges against people who run in their law enforcement circles is a problem that is brought to the forefront by the murder of Ahmaud Arbery.

The John Jay College of Criminal Justice in 2019 issued a study titled: "The Prosecutor's Role in Addressing Officer-Involved Fatalities and Critical Incidents."

Among its recommendations are the creation of "independent investigative bureaus" of prosecutors that work exclusively on officer-involved shootings, and don't "work with local law enforcement on any cases." It would essentially nip the conflict of interest issue in the bud. Some prosecutors would work with the cops, some would watch the cops.

Ahmaud Arbery did not die at the hands of police, but he did tie at the hands of an ex-cop and his son, who works with a prosecutor.

There's no shortage of available outrage to go around regarding this senseless death. Hopefully, some of that furor will go toward addressing an issue that's hiding in plain sight: prosecutors shouldn't be in charge of investigating their buddies.

This is an opinion column. The thoughts expressed are those of the author(s).